1. TEMPORARY MODFICATIONS FOR SULFATE AND SELENIUM IN LOWER ARKANSAS RIVER SEGMENT 1A SHOULD BE ALLOWED TO EXPIRE

2. THE REQUIREMENTS OF REG. 31.7 ARE NOT MET
In order to qualify for a temporary modification, a party must show it “has a demonstrated or predicted water quality based effluent limit compliance problem.” Reg
Pueblo’s discharge permit does not have a water quality based effluent limit for selenium or sulfate. WQCD Responsive PHS, p. 2.
Pueblo does not have a “water quality based effluent limit compliance problem” and thus has not met requirements of Reg and therefore no temporary modification can be approved.

3. PUEBLO’S TIMELINE DOES NOT REQUIRE A TEMPORARY MOD.
Pueblo’s current discharge permit does not expire until 5/31/15.
Discharge specific variance (“DSV”) guidance will become effective on 10/1/13.
Pueblo has 1 year and 7 months to prepare a DSV application before expiration of current permit, if a WQBEL is required in the future.
Therefore, Pueblo does not need a temporary modification.

4. No Need to Wait for State DSV Guidance
The WQCA contains provisions allowing for a variance. CRS ; (5); (9); (2).
The WQCA allows a discharger to seek a DSV based on federal regulations. CRS (9) & (2).
EPA has federal regulations governing DSVs. 40 CFR (g)(6)
Proposed State requirements are not substantively different from EPA regulations. WQCD Responsive PHS, p. 2.
Therefore, Pueblo can rely on the EPA regulations and does not need to wait for the State guidance.

5. Temporary modification is the wrong tool
By definition, temporary modifications must be “temporary.” Selenium temporary modification has already been in existence for 15 years.
The proper tool is a Use Attainability Analysis and/or change in the underlying water quality standard, not a perpetual modification.

6. Temporary modification is the wrong tool
Pueblo is the sole discharger requesting a temporary modification.
Lower Arkansas River Segment 1a is 15 miles long.
Pueblo’s proposal would change the standard in the entire 15 miles, not just at its point of discharge.
The more appropriate tool is a DSV at the time a WQBEL is established.

7. Let the temporary modification expire
The WQCC cannot legally approve Pueblo’s proposal b/c the requirements of Reg 31.7 has not been met.
Pueblo has 1 year and 7 months to prepare a DSV in the event a WQBEL is included in its next permit.
Pueblo can rely on existing federal DSV regulations.
The length of the current temporary modification has already been excessive.
Wrong change water quality standards in a 15 mile segment for a single discharger without a WQBEL in its permit.